PK's Kimmelman Dubious of ITIF Net Neutrality 'Grand Bargain' Bill Idea

ITIF’s 23-page report on a possible “grand bargain” rehashes many arguments the group has made all year slamming the FCC net neutrality order, focusing on its Communications Act Title II reclassification of broadband. President Rob Atkinson and telecom policy analyst Doug Brake wrote the report, citing assistance from Multicultural Media, Telecom and Internet Council Vice President Nicol Turner-Lee. All three spoke at Thursday’s briefing alongside Kimmelman and Internet Innovation Alliance Honorary Chairman Rick Boucher, a former Democratic House member from Virginia. Alliance members include AT&T, CompTIA and TechAmerica.

“Because there is broad agreement on the high-level principles of net neutrality, and Congress can easily bring closure to this debate, we should seek to leverage this opportunity to address a much more pressing broadband issue: the digital divide,” the ITIF report said. “A legislative solution can easily offer the FCC alternative and more legally sound jurisdiction for net neutrality rules while putting the focus on the tools needed to ensure broadband benefits all Americans. This will foreclose years of uncertainty, preserving the predictable light-touch needed for infrastructure investment.” Democrats could be “using this issue as leverage to finally get real funding for digital literacy and broadband adoption programs,” it said.

Commerce Committee Republicans in both chambers said at the year’s outset they wanted to negotiate with Democrats on targeted legislation. That effort collapsed quickly in the House but is ongoing in the Senate, as committee leaders affirmed this week (see 1510280041).

ITIF has “gone overboard” in slamming Title II, and Atkinson and Brake traded in “boogey men” about the effects, Kimmelman said, criticizing “the dark underbelly of this proposed legislation” as an impossibility to end net neutrality fights through such a bill: “Your conclusions are really exaggerated.” Kimmelman said the laws don't provide the certainty that compromise bill backers promise, saying previous pieces of telecom legislation were “litigated to the teeth” after passage. “Every time Congress has tried to specifically define things in law,” Kimmelman said, “along comes a new technology that people hadn’t thought about.” He lauded the focus on broadband affordability, adoption and literacy but said it’s not new and not required to be hitched to the Title II battles and comes with its own challenges in funding the initiatives. “I would not want legislation to declare [broadband] an information service,” Kimmelman said. “This fits very comfortably within Title II.”

Atkinson and Boucher have backed legislative compromise since early this year, including in February testimony before the House Communications Subcommittee. Kimmelman also testified at that hearing without the same enthusiasm for legislation, in addition to testifying at a January Senate hearing on possible legislation alongside Turner-Lee, who opposed Title II and backed a legislative deal. Boucher and Turner-Lee lauded the ITIF proposal during the Thursday discussion.

“This is a great bargain; the issues are crystallized,” Boucher said. He has written several op-eds urging Democrats to compromise on a bill that would trade codifying net neutrality protections for reversal of Title II reclassification. He said the ITIF proposal's “net adoption” broadband provisions were unnecessary to a deal and agreed with Kimmelman that it may be difficult to convince a GOP Congress of the virtues of taking money from the public and not from USF for those purposes. Kimmelman “played a weak hand really well,” Boucher said, dismissing arguments Kimmelman was making. “Democrats have leverage now,” Boucher said, citing his own efforts to pass net neutrality legislation in 2010. “They really haven’t had it before.”

"Those are not necessarily competing interests, net neutrality and digital divide,” Turner-Lee said. She said if Republicans and Democrats can hammer together a budget deal, as was unveiled this week (see 1510270063 and Communications Daily bulletin Oct. 27), then surely they can find compromise on net neutrality. “To this day, there are Democrats who would come to the table,” given the right incentives and politically safe climate, she said, citing the interest from the Congressional Black Caucus in such a legislative deal.

Atkinson ripped into net neutrality advocates more interested in headlines and tweets: “Victory for them was Title II,” said Atkinson, who believes these “Netroots community” advocates don't believe in compromise and pressure Capitol Hill Democrats against a deal. Democrats are thus “skittish,” he said, criticizing the advocates’ role. ”If it all falls apart, that’s who we have to blame.”

Panelists sparred over the significance of the 2016 White House race and the fate of the net neutrality order in court. The U.S. Court of Appeals for the D.C. Circuit will hear oral argument for industry challenges to the order Dec. 4 (see 1510280052).

A GOP administration would first classify broadband back as an information service, Boucher predicted: “It might take a year or two of Republican management at the FCC to achieve that … but you can be very certain that from day one, they’ll have their sights set on getting that done.” And protections “will be lost,” he said. He also said there is a “reasonable chance” that the court will overturn reclassification: “No slam dunk.” Future administrations might dismantle the order under Republicans or perhaps, as under a Bernie Sanders administration, the FCC “might decide to regulate rates, terms and conditions,” which the current agency has said it has no intention of doing, Boucher said.

“We’re hopeful we can take the momentum coming away from Title II and put it to good use,” Brake said. He pointed to the significance of Judge David Tatel being on the court panel that will hear the net neutrality case and sees a likelihood the order won’t hold up. Kimmelman disagreed and suspects the court will uphold the order, given that the FCC followed what he believes is earlier court guidance on statutory authority.

Kimmelman scoffed at the purported certainty that the others said legislation would bring. Even if Congress passed a bill, “A Republican FCC is going to interpret that differently than the Clinton administration’s FCC,” Kimmelman said. “Even with a new law, you’re going to get a variation on what you thought you passed in Congress, regardless of what the words say, and it’ll be different with a Democrat elected president, even with a new law.” He said “the fight will never end” due to the concentrated infrastructure and bottlenecks and opportunities for discrimination, all rich with tensions in the market. He believes “neither of the extremes” would happen anyway, with Republicans unlikely to abandon nondiscrimination policies and Democrats not anxious to ban any type of differentiation service, he said.

Any proposal also is unlikely to proceed as a narrow and targeted bill, independent of a broader telecom rewrite, Kimmelman said: “You just haven’t put any of the risk factors in on the new side that you load up on the Title II side, and that concerns me a lot,” he said of the ITIF proposal. Be careful in evaluating whether “there really is a bargain that can work," he said.